25 Trial Lawyer • Fall 2022 See Make Whole Law p 26 proceeds.” A push for change At the time, Oregon was one of several states whose laws permitted subrogation — a practice invented by a cartoon-worthy villain named George Rawlings, who became a multi-millionaire by figuring out how to put insurance companies first in line — ahead of victims — to recover from at-fault drivers in car crashes. Insurance companies hire lawyers to go after crash victims to make sure they don’t pocket settlement proceeds before insurers are paid. This often means the entire settlement goes to compensate insurers for their losses, while actual victims and their families are left with nothing. Like most of the lawmakers I would speak to in the years that followed, Rep. Kotek did not know about subrogation and expressed bewilderment that this practice could be legal. She committed to sponsoring a Make Whole Doctrine in Oregon and said she would introduce it during the 2013 legislative session. I left the meeting, stepping outside into a cold, Oregon drizzle feeling amazed and grateful that one person could set in motion such a big change. I thought the hard part was over. A few months later, I learned I was pregnant with twins, and my advocacy efforts took a back seat as I navigated a high-risk pregnancy while working fulltime. Thankfully, Seamus’s brother and sister were born healthy, and it wasn’t until I was home on maternity leave that I began to wonder what had become of the bill I initiated. Checking in with Rep. Kotek’s office, I was dismayed to learn the legislation her office drafted only applied to auto insurance companies. To put this in perspective, consider our auto insurance paid $15,000 in medical expenses for Seamus, while our health insurance paid more than $180,000. While a Make Whole bill applying only to auto insurance might help people with minor injuries, it would be meaningless in cases where surgeries and hospital stays were involved. Rep. Kotek’s office told me the bill I originally envisioned would face tremendous and likely insurmountable opposition from the health insurance lobby. As a new mom of twins, I wasn’t able to do more than watch the bill’s progress from home on my computer. It died in committee during the 2013 legislative session. That might have been the end of my Make Whole advocacy, were it not for a phone call from my state senator, Chip Shields, two years later. Sen. Shields told me my bill had a hearing the following day and asked me to come to Salem to testify. “My bill?” I asked him. Unbeknownst to me, OTLA had been working on auto insurance made whole since 2005. In 2014, a proconsumer candidate had defeated an anti-consumer senator and so the way was paved to advance the bill in 2015. The strategic decision was made to not apply the bill to health insurance in order to keep the health insurance industry out of the fight for the time being. It still only applied to auto insurance, but two other important components were added that would benefit crash victims. First was an expansion of the time one could use PIP benefits from 12 to 24 months. I thought about Eric’s lingering health issues — a mysteriously clicking ankle, a hematoma on his hip that never really healed, memory and executive functioning problems that were likely fallout from the concussion he suffered in the crash. An extra year to access his benefits would have made a difference to him and many other crash victims. The second and most controversial component of the bill was a policy known as “stacking,” allowing people injured in crashes to tap into their own insurance policy if the at-fault driver’s insurance isn’t enough to cover their expenses. In the absence of a Make Whole statute that applied to health insurance, a stacking provision would not have helped us. But for people like Dee Dee McElhaney, whose story I encountered while looking through the materials of a Senate committee hearing from earlier that week, it would have meant an extra $300,000 to cover a 23-day hospital stay, multiple surgeries and more than a year of therapy to learn how to walk again after being struck by a drunk driver. Sharing our story I woke at 5 a.m. the morning after Sen. Shields called, googled “how to submit testimony,” and drafted a onepage plea to legislators. Then I drove to Salem, where I listened to Sen. Sara Gelser introduce the bill, followed by insurance company lobbyists warning that premium increases resulting from “Seamus was our first child. He arrived on Christmas day, 2008 and quickly grew into a tank of a toddler, with huge feet, curly blonde hair and a pot belly that peeked out from beneath his t-shirts.”
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